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Supreme Court 16 March 2023

R v Coss (No 9)

[2023] NSWSC 269

Homicide
CRIMINAL PROCEDURE TRIAL JUDGE ALONE MURDER EVIDENCE NOT OPPOSED

Citation: R v Coss (No 9) [2023] NSWSC 269
Court: Supreme Court of New South Wales
Date: 16 March 2023
Judge: Dhanji J

Background

The accused is facing a murder trial before Dhanji J, sitting as judge alone. The trial was due to resume on 27 March 2023, and the Crown sought directions to allow four witnesses to give their evidence remotely via audio visual link (AVL), rather than travelling to court in person.

Three of the witnesses are private individuals residing in north-west New South Wales. The fourth is a forensic expert classified as a Government Agency witness under the relevant legislation. The accused did not oppose any of the applications.

  • Whether the requirements of s 5B(2) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) were satisfied for each of the three private witnesses, such that directions for AVL evidence could be made
  • Whether the fourth witness qualified as a Government Agency witness under s 5B(AA) of the same Act, and whether the necessary AVL facilities were available for her

Decision

Section 5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) empowers a court to direct that evidence be given by AVL. However, s 5B(2) sets out four circumstances in which the court must refuse such a direction: where facilities are unavailable, where in-person evidence would be more convenient, where the direction would be unfair to a party, or where the witness will not give evidence.

Dhanji J was satisfied that the necessary AVL facilities were available at Inverell for the three private witnesses. Because the accused did not oppose the applications and there were no identified credibility issues, his Honour was satisfied no unfairness would result. His Honour was also satisfied that each witness, who had been subpoenaed, would give evidence as required.

On the question of convenience, his Honour noted that each of the three witnesses would need to travel a significant distance from north-west New South Wales to attend court in person. Their ages were also relevant: the witnesses were 65, 72, and 86 years old respectively. Taking the distance and personal circumstances together, his Honour was not satisfied that in-person evidence would be more convenient, and accordingly made the AVL directions.

Regarding the forensic expert, his Honour confirmed her status as a Government Agency witness under s 5B(AA). Under that provision, a Government Agency witness must give evidence by AVL unless the court otherwise directs. His Honour confirmed the necessary facilities were available, and the direction was confirmed accordingly.

Orders Made

  • Peter Kennedy, Darryl Blackman, and Alfred King are directed to give evidence by AVL from Inverell, pursuant to s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
  • Dr Lorraine Du Toit-Prinsloo is confirmed as a Government Agency Witness under s 5B(AA) of the same Act and must give evidence by AVL from a place within New South Wales, unless otherwise directed
  • The court noted that the necessary AVL facilities are available or will be available for Dr Du Toit-Prinsloo

Key Takeaways

  • Under s 5B(2) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), a court must refuse an AVL direction in four specific circumstances; once those are each addressed and not established, the direction may be made
  • The age and geographic location of witnesses are relevant considerations when assessing whether in-person evidence would be "more convenient" than AVL evidence under s 5B(2)(b)
  • Absence of opposition from the accused, combined with no identified credibility disputes, was accepted as relevant to the question of whether an AVL direction would be unfair to any party
  • Government Agency witnesses occupy a distinct statutory category under s 5B(AA): they are required to give evidence by AVL unless the court directs otherwise, without the same balancing exercise required for other witnesses
  • This decision is procedural and specific to its facts; it does not purport to establish any new principle of general application

Legislation and Cases Referenced

Legislation:
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 5B(1), 5B(2), 5B(AA)

Cases cited: None cited in this decision.